Citation Nr: 0028898
Decision Date: 11/01/00 Archive Date: 11/09/00
DOCKET NO. 99-14 158 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUES
1. Entitlement to service connection for hypertension.
2. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a
bilateral foot disability.
3. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a
back disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. Siegel, Counsel
INTRODUCTION
The veteran served on active duty from February 1942 to
November 1945.
This case comes before the Board of Veterans' Appeals (Board)
from an August 1998 rating decision, in which the Nashville,
Tennessee, Regional Office (RO) of the Department of Veterans
Affairs (VA) determined that new and material evidence had
not been submitted that would serve to reopen previously-
denied claims of entitlement to service connection for back
and bilateral foot disabilities.
In that August 1998 rating decision (and, prior to that, in
an October 1996 rating decision), the RO also determined that
new and material evidence had not been received to reopen a
claim of entitlement to service connection for hypertension.
The RO indicated, in the Statement of the Case issued in June
1999, that service connection for that disorder had been
previously denied by the RO, in December 1970. The December
1970 rating decision, while showing that hypertension was
found to be nonservice-connected, does not indicate that the
question of service connection for hypertension was a matter
raised for RO adjudication at that time. However, even if
the Board were to find that it had been before the RO in
December 1970, it must be noted that the letter sent to the
veteran and his representative in January 1971, whereby
notice of the December 1970 rating action was furnished, does
not identify hypertension as an issue that had been
considered by the RO. The Board accordingly finds that the
issue of service connection for hypertension is accurately
characterized as indicated on the first page of this
decision, and not one for which new and material evidence is
required. The Board also finds that appellate review of that
issue as characterized on the first page of this decision
will not be prejudicial to the veteran, inasmuch as such
review will encompass all evidence associated with his claims
folder. See Bernard v. Brown, 4 Vet. App. 384 (1993).
FINDINGS OF FACT
1. No medical evidence has been presented or secured to
render plausible a claim that hypertension was either
manifested during service, could be presumed to have been
manifested during service, or is the result of a disease or
injury incurred therein.
2. Service connection for a bilateral foot disability was
denied most recently by VA by means of an October 1996 rating
decision, wherein it was determined that a previously-denied
claim for service connection for a bilateral foot disability
had not been reopened. The veteran was notified of that
decision, and of appellate rights and procedures, but did not
indicate timely disagreement therewith.
3. The evidence received subsequent to October 1996, with
regard to the veteran's claim for service connection for a
bilateral foot disability, is not new.
4. Service connection for a back disability was denied most
recently by VA by means of an October 1996 rating decision,
wherein it was determined that a previously-denied claim for
service connection for a back disability had not been
reopened. The veteran was notified of that decision, and of
appellate rights and procedures, but did not indicate timely
disagreement therewith.
5. The evidence received subsequent to October 1996, with
regard to the veteran's claim for service connection for a
back disability, is not new.
CONCLUSIONS OF LAW
1. The claim for service connection for hypertension is not
well grounded, and there is no statutory duty to assist the
veteran in the further development of facts pertinent to this
claim. 38 U.S.C.A. § 5107(a) (West 1991).
2. The RO's October 1996 rating decision, wherein it was
determined that new and material evidence had not been
submitted that would serve to reopen a claim for service
connection for a bilateral foot disability, is final.
38 U.S.C.A. § 7104(b) (West 1991).
3. The evidence received subsequent to the RO's October 1996
rating decision, wherein it was determined that new and
material evidence had not been submitted that would serve to
reopen a claim for service connection for a bilateral foot
disability, again does not serve to reopen that claim.
38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999).
4. The RO's October 1996 rating decision, wherein it was
determined that new and material evidence had not been
submitted that would serve to reopen a claim for service
connection for a back disability, is final. 38 U.S.C.A.
§ 7104(b) (West 1991).
5. The evidence received subsequent to the RO's October 1996
rating decision, wherein it was determined that new and
material evidence had not been submitted that would serve to
reopen a claim for service connection for a back disability,
again does not serve to reopen that claim. 38 U.S.C.A.
§ 5108 (West 1991); 38 C.F.R. § 3.156(a) (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Service Connection for Hypertension
Service connection means that the facts, shown by evidence,
establish that a particular injury or disease resulting in
disability was incurred in the line of duty in the active
military service or, if pre-existing such service, was
aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West
Supp. 2000); 38 C.F.R. § 3.303(a) (1999).
The first responsibility of a person seeking entitlement to
VA benefits is to state a well-grounded claim. 38 U.S.C.A.
§ 5107(a) (West 1991). Establishing a well-grounded claim
for service connection (or for compensation under § 1151) for
a particular disability requires more than an allegation that
the disability is service connected; it requires evidence
relevant to the requirements for service connection and of
sufficient weight to make the claim plausible, i.e.,
meritorious on its own or capable of substantiation. See
Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992); Murphy v.
Derwinski, 1 Vet. App. 78, 81 (1990). The kind of evidence
needed to make a claim well grounded depends upon the types
of issues presented by a claim. Grottveit v. Brown, 5 Vet.
App. 91, 92-93 (1993). For some factual issues, competent
lay evidence may be sufficient. However, where the claim
involves issues of medical fact, such as medical causation or
medical diagnoses, competent medical evidence is required.
Id. at 93.
A well-grounded claim for direct service connection generally
requires (1) medical evidence of a current disability; (2)
medical or, in certain circumstances, lay evidence of
inservice incurrence or aggravation of a disease or injury;
and (3) medical evidence of a nexus between the claimed
inservice disease or injury and the present disease or
injury. See Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir.
1997); Caluza v. Brown, 7 Vet. App. 498, 504-06 (1995). The
United States Court of Appeals for Veterans Claims (formerly
the U.S. Court of Veterans Appeals) (Court) has held that the
second and third Caluza elements can also be satisfied under
38 C.F.R. § 3.303(b) by (a) evidence that a condition was
"noted" during service or during an applicable presumption
period; (b) evidence showing post-service continuity of
symptomatology; and (c) medical or, in certain circumstances,
lay evidence of a nexus between the present disability and
the post-service symptomatology. See 38 C.F.R. § 3.303(b);
see also Brewer v. West, 11 Vet. App. 228, 231 (1998); Savage
v. Gober, 10 Vet. App. 488, 495-97 (1997).
Alternatively, under 38 C.F.R. § 3.303(b), service connection
may be awarded for a "chronic" condition when: (1) a
chronic disease manifests itself and is identified as
such in service (or within the presumption period under 38
C.F.R. § 3.307) and the veteran presently has the same
condition; or (2) a disease manifests itself during service
(or during the presumptive period) but is not identified
until later, there is a showing of continuity of related
symptomatology after discharge, and medical evidence relates
that symptomatology to the veteran's present condition.
Savage, 10 Vet. App. at 495-98.
For purposes of determining whether a claim is well grounded,
the evidence is generally presumed to be credible. See
Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995), citing King
v. Brown, 5 Vet. App. 19, 21 (1993).
In the instant case, the medical evidence of record indicates
that the veteran has been diagnosed on several occasions as
having hypertension. The Board therefore finds that there is
sufficient medical evidence of a current disability, and that
the first element of a well-grounded claim has been
satisfied.
However, the second element of a well-grounded claim, that
there be medical evidence of a disease or injury during
service, has not been satisfied. The veteran's service
medical records do not indicate that either hypertension, or
elevated blood pressure readings, were identified during his
period of active duty. The report of his separation medical
examination, dated in November 1945, shows that his blood
pressure was recorded as 122/78 (that is, within normal
limits).
Governing regulatory provisions stipulate that certain
disorders, to include hypertension, may be presumed to have
been incurred during active service if manifested to a
compensable degree within one year after service separation.
38 U.S.C.A. §§ 1101, 1111, 1112, 1113, 1137 (West 1991 and
Supp. 2000); 38 C.F.R. §§ 3.307, 3.309 (1999). While a March
1947 VA medical record shows that a blood pressure reading of
140/90 was noted, it must be pointed out that this record is
not only dated more than one year subsequent to the veteran's
separation from service, but also that the blood pressure
reading recorded would not warrant
the assignment of a compensable disability rating; see
38 C.F.R. § 4.104, Diagnostic Code 7101. The medical
evidence first indicates a diagnosis of hypertension in
September 1970, almost 25 years following the veteran's
service separation
Because no medical evidence has been presented or secured to
render plausible a claim that the hypertension initially
diagnosed many years after service had its onset in service
(or could be presumed to have had its onset in service), or
is the result of, or is otherwise related to, any disease
contracted or injury sustained in active military service,
the Board concludes that this claim is not well grounded.
38 U.S.C.A. § 5107(a) (West 1991).
Where a claimant refers to a specific source of evidence that
could make his claim plausible, VA has a duty to inform him
of the necessity to submit that evidence to complete his
application for benefits. See Epps v. Brown, 9 Vet.
App. 341, 344-45 (1996), aff'd Epps v. Gober, 126 F.3d. 1464,
1468 (Fed. Cir. 1997). The Board finds VA has no outstanding
duty to inform the appellant of the necessity to submit
certain evidence to complete his application for VA benefits.
38 U.S.C.A. § 5103(a) (West 1991). With regard to the case
at hand, nothing in the record suggests the existence of
evidence that might well ground the veteran's claim for
service connection for hypertension. Accordingly, the Board
concludes that VA did not fail to meet its obligations with
regard to that claim under 38 U.S.C.A. § 5103(a) (West 1991).
II. Whether New and Material Evidence Has Been Submitted to
Reopen Claims of Entitlement to Service Connection for
Bilateral Foot and Back Disabilities
A decision of a duly-constituted rating agency or other
agency of original jurisdiction is final and binding as to
all field offices of the Department as to written conclusions
based on evidence on file at the time the claimant is
notified of the decision. 38 C.F.R. § 3.104(a) (1999). Such
a decision is not subject to revision on the same factual
basis except by a duly constituted appellate authority. Id.
A claimant has one year from notification of a decision of
the agency of original jurisdiction to file a notice of
disagreement (NOD) with the decision, and the decision
becomes final if no NOD is filed within that time.
38 U.S.C.A. § 7104(b) and (c) (West 1991); 38 C.F.R.
§§ 3.160(d), 20.302(a) (1999). Governing statutory and
regulatory provisions stipulate that both unappealed rating
decisions and decisions of the Board are final, and may be
reopened only upon the receipt of additional evidence that,
under the applicable statutory and regulatory provisions, is
both new and material. 38 U.S.C.A. § 5108 (West 1991); see
also 38 U.S.C.A. §§ 7104(b) and 7105 (West 1991).
In order to reopen a claim which has been previously denied
and which is final, the claimant must present new and
material evidence. 38 U.S.C.A. § 5108. New and material
evidence means evidence not previously submitted to agency
decisionmakers which bears directly and substantially upon
the specific matter under consideration, which is neither
cumulative nor redundant, and which by itself or in
connection with evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a); see
also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The
claimant does not have to demonstrate that the new evidence
would probably change the outcome of the prior denial.
Rather, it is important that there be a complete record upon
which the claim can be evaluated, and some new evidence may
contribute to a more complete picture of the circumstances
surrounding the origin of a claimant's injury or disability.
Hodge, 155 F.3d at 1363.
When presented with a claim to reopen a previously finally
denied claim, VA must perform a three-step analysis. Elkins
v. West, 12 Vet. App. 209 (1999). First, it must be
determined whether the evidence submitted by the claimant is
new and material. Second, if new and material evidence has
been presented, it must be determined, immediately upon
reopening the claim, whether the reopened claim is well
grounded pursuant to 38 U.S.C. § 5107(a) based upon all the
evidence and presuming its credibility. There is no duty to
assist in the absence of a well grounded claim. Epps v.
Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997), cert. denied sub
nom. Epps v. West, 118 S.Ct. 2348 (1998). Third, if the
reopened claim is well grounded, VA may evaluate the merits
of the claim after ensuring that the duty to assist under
38 U.S.C.§ 5107(b) has been fulfilled.
1. A Bilateral Foot Disability
Prior to the current appeal, service connection for a
bilateral foot disability had been denied most recently by VA
in October 1996, when the RO determined that new and material
evidence had not been submitted to reopen a previously-denied
claim for that disorder. The RO noted that the evidence that
had been submitted since the prior determination, consisting
of evidence of current treatment for a foot condition, was
not sufficient to establish that a foot disorder had been
incurred during military service. (The Board notes that the
question of service connection for foot problems, variously
characterized, had been the subject of unappealed rating
decisions that had been rendered in February 1946, August
1947, December 1970, January 1987, and January 1993; on each
occasion the veteran was notified of that decision, and of
appellate rights and procedures, but did not perfect any
appeal thereof.)
The veteran was notified of the RO's October 1996 decision,
and of appellate rights and procedures, by means of a letter
dated October 9, 1996. The record does not reflect that a
timely NOD with regard to the RO's adverse decision was
thereafter received. Therefore, RO's October 1996 decision
that new and material evidence had not been submitted that
would serve to reopen his claim for service connection for a
foot disorder is final and can be reopened only upon the
submission of new and material evidence.
The evidence received subsequent to October 1996, with regard
to the question of service connection for a bilateral foot
disability, consists of private medical records dated in
April 1998 indicating that the veteran was accorded treatment
at that time for bilateral hammertoes. This evidence is new
in the sense that these records had not previously been
associated with his claims folder. However, the presence of
current foot problems was acknowledged by the RO in October
1996. Additional evidence pertaining to current foot
problems is merely cumulative and is not new. Therefore, the
Board concludes that new and material evidence has not been
submitted to reopen the claim for service connection for a
bilateral foot disability and the claim remains denied.
In view of the decision that new and material evidence has
not been submitted, the Board does not reach the question of
whether the veteran's claim is well grounded.
2. A Back Disability
Prior to the current appeal, service connection for a back
disability had also been denied most recently in October
1996; at that time, the RO likewise determined that new and
material evidence had not been submitted that would serve to
reopen a previously-denied claim for that disorder. The RO
noted that the evidence that had been submitted since the
most recent denial of that claim consisted of records
demonstrating current treatment for low back pain and held
that this was not sufficient to establish that a back
disability had been incurred during military service or that
there was evidence of continuity of symptoms since discharge.
(The Board notes that the question of service connection for
a back disability, variously characterized, had been the
subject of unappealed rating actions that had been rendered
in December 1970, November 1985, January 1993, July 1993, and
April 1995.)
The veteran was notified of the RO's October 1996 decision,
and of appellate rights and procedures, by means of a letter
dated October 9, 1996. The record does not reflect that a
timely NOD with regard to the RO's adverse decision was
thereafter received. The RO's October 1996 decision that new
and material evidence had not been submitted that would serve
to reopen his claim for service connection for a back
disorder is, therefore, final, and, as discussed above, can
be reopened only upon the submission of new and material
evidence.
The evidence submitted subsequent to October 1996 consists of
private medical records, dated in April 1998, that pertain to
bilateral hammertoes. No evidence that references the
presence of any back problems has been associated with the
veteran's claims file since October 1996. Therefore, the
Board concludes that no new and material evidence has been
submitted with regard to the question of service connection
for a back disability and that the claim may not been
reopened and remains denied.
In view of the decision that new and material evidence has
not been submitted, the Board does not reach the question of
whether the veteran's claim is well grounded.
Where a claim has not been reopened and found well grounded,
VA does not have a statutory duty to assist a claimant in
developing facts pertinent to the claim, but VA may be
obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of
evidence needed to complete his application. This obligation
depends on the particular facts of the case and the extent to
which the Secretary has advised the claimant of the evidence
necessary to be submitted with a VA benefits claim. Graves
v. Brown, 8 Vet. App. 522, 524-25 (1996); Robinette v. Brown,
8 Vet. App. 69, 78 (1995). In this case, the veteran has
been notified many times of the reasons for the denial of his
claims and of the need for evidence which showed that current
disabilities of the back and feet are the result of diseases
or injuries incurred in service in the 1940s. Moreover,
here, unlike the situation in Graves, the appellant has not
put the VA on notice of the existence of any specific,
particular piece of evidence that, if submitted, could
provide the new and material evidence needed to reopen his
claims. See also Epps v. Brown, 9 Vet. App. 341 (1996).
Accordingly, the Board concludes that VA did not fail to meet
its obligations under 38 U.S.C.A. § 5103(a) (West 1991).
ORDER
Having found the claim not well grounded, entitlement to
service connection for hypertension is denied.
New and material evidence has not been submitted to reopen a
claim of entitlement to service connection for a bilateral
foot disability. The benefits sought on appeal as to that
claim remain denied.
New and material evidence has not been submitted to reopen a
claim of entitlement to service connection for a back
disability. The benefits sought on appeal as to that claim
remain denied.
KATHLEEN K. GALLAGHER
Acting Veterans Law Judge
Board of Veterans' Appeals